In Zoning, Know the Steps to Accept an Exception

By Chris Mincher
Of counsel, McAllister, DeTar, Showalter & Walker

It’s never a bad time for a little appellate reminder on how a local zoning authority should document a variance decision, especially when it also serves as the coda to the nine-year saga of the Wal-Mart Superstore in Clinton. For those who haven’t been tracking Grant v. County Council of Prince George’s County, here’s the gist: When the county established a new setback requirement, Wal-Mart was allowed to have its current setback grandfathered in, but when the company wanted to expand the whole building it needed to either comply with the new setback or a variance. Not surprisingly, Wal-Mart opted for the variance.

A bunch of procedural questions popped up along the way about the County’s use of staff attorneys, compliance with the Open Meetings Act, and relationship with its zoning hearing examiner, all of which the former Court of Appeals would love to tell you about in its 2019 opinion at 465 Md. 496. At the end of the day, however, the case returned to the County to fix how it evaluated the variance request. Other zoning authorities should pay attention so it can learn from those mistakes.

Continue reading “In Zoning, Know the Steps to Accept an Exception”

City Charters that Curtail Claims are Subject to Preemption

By Chris Mincher
Of counsel, McAllister, DeTar, Showalter & Walker

Local government attorneys are well-familiar with the Local Government Tort Claims Act, especially its requirement that a plaintiff provide a year’s notice before suing. But they might not expect that the notice requirement would preempt provisions of municipal charters. So although unreported, the recent Appellate Court case of Bozarth v. Rams Head Tavern is worth some attention.

The case began after the plaintiff was walking on the sidewalk in Annapolis and tripped on a hatch cover. In compliance with the LGTCA — specifically at § 5-304(b)(1) of the Court and Judicial Proceedings Article — she gave notice in writing within a year that she had a negligence claim for the City’s failure to protect the public by warning of the sidewalk condition and then covering and repairing it. At trial, however, the City received a directed verdict based on a separate notice provision in its charter: Pursuant to Article IX, § 9, the City isn’t liable for personal injury or property damage based on the condition, defects, or acts or omissions in the maintenance or repair of public property, unless a few conditions are satisfied. 

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Zoning Laws Can Be Useful Without Stating Uses

By Chris Mincher
Of counsel, McAllister, DeTar, Showalter & Walker

An effective zoning scheme will be crafted with the realization that it’s not possible to list everything people might want to do with their property. If owners request permission for an activity that’s not precisely provided for, it’s important if there are other provisions informing employees, appeals boards, and courts as to how that should be handled. Those guiding principles can help protect a governmental decision to allow a use when the text of the law is ambiguous — just take a look at In the Matter of Laurell A. Aiton.

The case involved a forested lot in Waldorf zoned for “agricultural conservation” upon which the owner, Woodville Pines, wanted to build a lodge that would be rented out as an event venue. There wasn’t a special exception to the zoning classification for event venues, but there was for “social, fraternal clubs and lodges, union halls, meeting halls and similar uses.” Woodville Pines applied for the exception as a “similar use” to those and the Charles County Board of Appeals granted it, finding that “social assembly” was such a “similar use.” 

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Position Reclassification Needs Rules and Record

By Chris Mincher
Of counsel, McAllister, DeTar, Showalter & Walker

As we are all fully aware, unreported opinions can’t be cited in any way, shape, or form in Maryland courts, but that doesn’t mean they aren’t useful to keep on top of. For one, they can offer a lot of practical guidance on handling frequent, not-particularly-earth-shattering issues that come up in a practice. Specifically for governments, unreported opinions capture a lot of administrative appeals of routine decisions — especially in the personnel context.

Take, for example, a government’s reclassification of a position. Sometimes the employee is happy when that happens, sometimes not. In the Matter of Parviz Izadjoo, App. Ct. of Md., Sept. Term 2021, No. 1795 (January 20, 2023), is an instance of the latter, after the Maryland National Capital Park and Planning Commission Merit Systems Board changed Mr. Izadjoo’s job from “building maintenance supervisor” to “senior construction representative,” which didn’t come with a salary bump.

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Open Meetings Act Forum Tentatively Set For February 6

By Frank Johnson
Deputy City Attorney, City of Gaithersburg

The Section will sponsor a virtual Open Meetings Act lunch forum, to include Assistant Attorney General Rochelle Simpson, who advises the Open Meetings Compliance Board, Section Chair Amanda Conn, who teaches about the Open Meetings Act at George Mason Law School, and Frank Johnson, who has been a certified trainer on the Open Meetings Act since 2017. The tentative date is February 6, and the panel discussion will include a discussion on key Open Meetings issues facing towns, cities, counties, and school boards, including the required steps to close meetings, how emails can be subject to Open Meetings Act requirements, how deliberation of public officials is so important that public observation is typically required, and specific reasons identified by the Act to allow closure, as well as training requirements and resources for assistance. In addition to the panel discussion, as time permits the panelists will entertain questions, so watch for the announcement and be sure to join us!

Limits On The Constitutional Amendment’s Legalization Of Marijuana And The Impact On Public Policy

By Frank Johnson
Deputy City Attorney, City of Gaithersburg

Roughly two-thirds of Maryland voters approved Question 4, which provides that after July 1, 2023, a person “who is at least 21 years old may use and possess” marijuana (legally referred to as “cannabis”), but Question 4 included a second section making legalization subject to the General Assembly’s passage of legislation providing for the “use, distribution, possession, regulation and taxation of cannabis within the state” in what will launch the cannabis industry in a major way. So, the amendment did not remove all restrictions on use, sale, and possession.

The legislation leading to Question 4 was included in House Bill 1 in the 2022 General Assembly, which also passed House Bill 837, entitled “Cannabis Reform. ” This bill took effect on January 1, 2023.

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Maryland Court Of Appeals Becomes the Supreme Court

By Frank Johnson
Deputy City Attorney, City of Gaithersburg

One of the constitutional amendments approved by the voters was to change the name of Maryland’s appellate courts. The approved changes are to both the Court of Appeals and the Court of Special Appeals, neither of which will use their former names. Instead, the current higher court will be called the Supreme Court of Maryland, and the intermediate appellate court will be called the Appellate Court of Maryland.

The name Court of Appeals was handed down from Great Britain and adopted by approval of the Maryland Constitution in 1776. At that time, the Court consisted of six chief judges of the state’s judicial districts, and in 1851 the Court become unified as the highest court. While the number of judges has varied, from 4 to 5 to 8, Senate Bill 7 proposed the current number of 7 in 1960, which the voters approved.

The Court of Special Appeals was created by an approved constitutional amendment in 1966 to address an increase in litigation and appeals that the Court of Appeals struggled to address. The number of judges has increased from 5, originally, to 15 as changed by statute in 2013.

Welcome to a new year with our section!

By Amanda Conn
General counsel, Washington Suburban Sanitary Commission

Happy new year to all of the members of the State and Local Government Law Section. I
hope each of you had a safe and relaxing holiday season. The Section Council hopes to continue to provide you with useful and timely programs in the new year that will help you in your practice and the clients you represent.

The non-presidential general election makes for a busy and interesting couple of months for attorneys in our section because the election brings changes to the state and local government clients we represent.

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Section counsel membership set

By Frank Johnson
Deputy City Attorney, City of Gaithersburg

Council members serve the Section primarily through their work on committees, including the Programs, Communications, Legislative, and Membership and Nominations Committees. Their work includes creating the annual State and Local Government Law Institute and other networking programs during the year, helping to maintain the section blog, and continuing to provide newsletters and other information. Section Council members for this year include:
Amanda Stakem Conn, Section Chair, general counsel, WSSC Water
• Kimberly Hale Carney, Section Vice-Chair, assistant attorney general (Department of Labor)
• Patrick B. Hughes, Section Secretary, assistant attorney general (Opinions and Advice)
• Robert A. McFarland, Section Treasurer, assistant attorney general (Department of Natural
• Frank Johnson, Past Chair and Newsletter Editor, deputy city attorney, Gaithersburg
Patrick W. Thomas, MacLeod Law Group
• John Mattingly, assistant county attorney, Calvert County
Christopher J. Mincher, chief legal counsel, Office of the Governor
• Jerome Spencer, general counsel, Charles County Sheriff’s Office
• Talley H-S. Kovacs, assistant attorney general (Department of Natural
Elissa Levan, partner, Levan Ruff LLC
• Kathleen Chapman, administrative law judge, Office of Administrative Hearings
• Roscoe Leslie, county attorney, Worcester County
• Tom Mitchell, assistant county attorney, Anne Arundel County
• Neil Murphy, associate general counsel, Maryland-National Capital Park & Planning Commission
• Kirstin Lustila, assistant attorney general (Treasurer)
• Elizabeth Adams, attorney, Prince George’s County

Spring Institute topics range from appellate to policing

By Frank Johnson
Deputy City Attorney, City of Gaithersburg

The Section held its annual training in June and, given ongoing concerns regarding the COVID-19 pandemic, it was virtual. There was first a panel discussion on the Supreme Court’s 2022 term, including participation from Amanda Karras, who is the director of the International Municipal Lawyers Association, and Dan Schweitzer from the National Association of Attorneys General Center for Supreme Court Advocacy.

Continue reading “Spring Institute topics range from appellate to policing”